Power-sharing and human rights law

Abstract

This article maps international human rights jurisprudence relating to the compatibility of power-sharing arrangements with human rights law. This mapping reveals a growing jurisprudence but one that appears piecemeal and internally inconsistent. The article suggests that human rights jurisprudence on power-sharing has varied over time, but also, by region, by group addressed, and according to the perceived purpose of the power-sharing mechanism. The article argues that the contingencies of human rights adjudication reflect underlying assessments of the legitimacy of the polity that are seldom explicitly articulated by human rights bodies. The relationship of adjudication to legitimacy poses a central paradox for any attempt to articulate a more coherent normative approach: normative coherence appears to require human rights bodies to develop their understanding of the relationship of rights to governmental legitimacy, but such development appears beyond the reach of human rights bodies due to structural limits of international human rights law and its adjudicatory apparatus. This paradox drives the inconsistencies of how human rights bodies engage with power-sharing and constitutes the real barrier to coherent normative development.

Keywords:

• power-sharing
• consociationalism
• European Court of Human Rights
• constitutional law
• minority rights

Acknowledgements

Thanks are due to Kathleen Cavanaugh, Michael Hamilton, Christopher McCrudden, Stephen Tierney, Stef Vandeginste, Stephen Wheatley and David Wippman for comments on an earlier draft. Mistakes which remain are my own.

Notes

See the over 600 peace agreements, and discussions of their arrangements, in Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria, (Oxford: Oxford University Press, 2008), 105–23.

See Marcia Langton, Maureen Tehan, Lisa Palmer and Kathryn Shain, eds, Honour Among Nations? Treaties and Agreements with Indigenous Peoples (Victoria: Melbourne University Press, 2004); Jeremie Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2007). Autonomy agreements have also resulted from conflicts between states and indigenous peoples, see autonomy agreements between the Adivaasi and the Indian government, (see e.g., Memorandum of Settlement on Bodoland Territorial Council, 19 February 2003, http://www.satp.org/satporgtp/countries/india/states/assam/documents/papers/memorandum_feb02.htm (accessed 18 July 2012)).

See, Acting Together for Kenya – Agreement on the Principles of Partnership of the Coalition Government, 28 February 2008; and Agreement between the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the Two Movement for Democratic Change (MDC) Formations, on Resolving the Challenges Facing Zimbabwe, 15 September 2008, both available at http://peacemaker.unlb.org/index1.php (accessed 19 July 2012).

For general accounts see: Steven Wheatley, Democracies, Minorities and International Law (Cambridge: Cambridge University Press, 2005); David Wippman ‘Practical and Legal Constraints on Power Sharing’, in International Law and Ethnic Conflict, ed. David Wippman (Ithaca, New York: Cornell University Press, 1998), 211; Will Kymlicka, ‘The Internationalization of Minority Rights’, Journal of International Constitutional Law 6, no. 1 (2008): 1. For discussion of European dimensions see Chris McCrudden, ‘Consociationalism, Equality, Minorities in the Northern Ireland Bill of Rights Debate: The Role of the OSCE High Commissioner on National Minorities’, in Judges, Transition and Human Rights, ed. John Morison, Kieran McEvoy and Gordon Anthony (Oxford: Oxford University Press, 2007), 315; Steven Wheatley, ‘The Construction of the Constitutional Essentials of Democratic Politics by the European Court of Human Rights following Sejdić and Finci’, in Examining Critical Perspectives on Human Rights, ed. Rob Dickinson, Elena Katselli, Colin Murray and Ole W. Pedersen (Cambridge: Cambridge University Press, 2012), 153. For discussion of African dimensions see: Jeremy Levitt, Illegal Peace in Africa: An Inquiry into the Legality of Power Sharing with Warlords, Rebels and Junta (Cambridge: Cambridge University Press, 2012); Jeremy Levitt, ‘Illegal Peace?: Examining the Legality of Power-sharing with Warlords and Rebels in Africa’, Michigan Journal of International Law 27, no. 2 (2006): 495; Stef Vandeginste, ‘The African Union, Constitutionalism and Power-sharing’ (Working Paper/2011.05, Antwerp: University of Antwerp, 2011). However, this gap is in the process of being remedied, in addition to this collection see in particular Christopher McCrudden and Brendan O'Leary, Courts and Consociations: Human Rights versus Power-sharing (Oxford: Oxford University Press, forthcoming 2013).

See, Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford: Clarendon Press, 2007), for an extensive discussion of the ways in which group accommodation has been shaped by and has shaped international law. See also Bell, On the Law of Peace, 218–38.

See e.g. Arend Lijphart, Democracy in Plural Societies (New Haven, CT: Yale University Press, 1977), 25–52; see also development and refinement of these criteria in Brendan O'Leary, ‘Debating Consociational Politics: Normative and Explanatory Arguments’, in From Power Sharing to Democracy, ed. Sid Noel (Montreal: McGill/Queen's University Press), 3–43.

O'Leary, ‘Debating Consociational Politics’.

Donald L. Horowitz, Ethnic Groups in Conflict, 2nd ed. (London; Berkeley; Los Angeles: University of California Press, 2000). See also, Benjamin Reilly, Democracy in Divided Societies (Cambridge: Cambridge University Press, 2001); Timothy Sisk, Power Sharing and International Mediation in Ethnic Conflict (Washington, DC: United State Institute for Peace Press, 1996).

Cf. Philip G. Roeder, ‘Power-dividing as an Alternative to Ethnic Power-sharing’, in Sustainable Peace: Power and Democracy After Civil Wars, Volume 15, ed. P.G. Roeder and P. Rothschild (Ithaca, NY: Cornell University Press, 2005), 51–82.

See McCrudden and O'Leary's excellent Consociations and Courts, for an excellent vindication of this approach.

Marc Weller and Stefan Wolff, eds, Autonomy, Self-governance and Conflict Resolution: Innovative Approaches to Institutional Design in Divided Societies (London: Routledge, 2005). See also Stefan Wolff, ‘The Emerging Practice of Complex Power Sharing’, in Die Verteilung der Welt. Selbstbestimmung und das Selbstbestimmungsrecht der Völker [The World Divided. Self-determination and the Right of Peoples to Self-determination], ed. Jörg Fisch (Munchen: Oldenbourg Wissench.Vlg, 2011).

See, Report of the Independent Expert on Minority Issues, Gay McDougall, Human Rights Council, Nineteenth Session, Agenda Item 3, UN GA A/HRC/19 56/Add.1, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/171/36/PDF/G1117136.pdf?OpenElement (accessed 24 October 2012).

See in particular, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, 1992, the Council of Europe's Framework Convention on the Protection of National Minorities, 1995, and the UN Declaration on the Rights of Indigenous Peoples, 2007. See also, Lund Recommendations on the Effective Participation of National Minorities in Public Life, 1999, http://www.osce.org/hcnm/32240 (accessed 23 July 2012) and Recommendations of the Second Session of the Forum on Minorities Issues on minorities and effective political participation, Human Rights Council, Thirteenth Session, Agenda Item 3, A/HRC/13/25, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/106/15/PDF/G1010615.pdf?OpenElement (accessed 24 October 2012).

In Yumak and Sadak v. Turkey, ECtHR Application No. 10226/03 (8 July 2008), the Grand Chamber of the ECtHR refused to strike down the requirement in Turkey that a 10% threshold of the national vote was required to gain representation in the Parliament, even though this effectively excluded Kurdish parties, and was the highest threshold of all member states (in part because other safeguards were found to be in place). In contrast, in YAMATA v. Nicaragua, 2005 Inter-AM CtHR (se C) No. 127 (June 23, 2005) the Inter-American Court of Human Rights, found that electoral rules on the minimum number of candidates and forms of party registration, violated article 23 of the American Convention on Human Rights 1969 (similar language to Article 25, ICCPR), because indigenous peoples could not comply. For further discussion of these cases and the relationship between minority and democratic rights more generally, see further Catherine J. Iorns Magallanes, ‘Indigenous Rights and Democratic Rights in International Law: An “Uncomfortable Fit”?’, University of California Journal of International Law and Foreign Affairs 15 (2010): 111, in particular at 163–81.

For example, the Advisory Committee on the Framework Convention for the Protection of National Minorities has routinely welcomed reserved seats; for example, Opinion on Romania, ACFC/INF/OP/I(2002)001, where it welcomed provision for seats for minority parties in the event that they failed to make the minimum specification for the national parliament. See further Wheatley, Democracies, Minorities and International Law, 155–7. The ECtHR decision of Bosnia v. Sejdić and Finci discussed in this article, also noted that this was a permissible use of ethnic criteria, see further infra.

On proportionality rationale see Mátyus v. Slovakia, Communication N. 923/2000 UN Doc. CCPR/C/75/D/923/2000, 26 July 2002, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9b0b9705cccfa712c1256c4600375100?Opendocument (accessed 24 July 2012). On women, see Committee on the Elimination of Discrimination against Women, General Recommendation No. 23, ‘Political and Public Life’, adopted 13 January 1997, http://www.bayefsky.com/getfile.php/id/317/misc/general (accessed 19 July 2012), para. 15.

McCrudden and O'Leary, Courts and Consociations, 96.

For a good review of these debates see O'Leary, ‘Debating Consociational Politics’.

General Comment No. 25, ‘Article 25 (Participation in Public Affairs and the Right to Vote)’, para. 21, http://www.unhchr.ch/tbs/doc.nsf/0/d0b7f023e8d6d9898025651e004bc0eb (accessed 23 July 2012).

Wippman, International Law and Ethnic Conflict.

There was a prior challenge to the territorial and segmental autonomy dimension of group accommodation mechanisms for French-speaking and Dutch-speaking linguistic groups, with respect to provision for own-language education, which will be considered in the discussion of human rights and territorial aspects of power-sharing below.

Mathieu-Mohin and Clerfayt v. Belgium, Appl. No. 9267/81, 2 March 1987.

Ibid., paras 49–54. The court also found that all votes did not need to have equal weight with regard to the outcome of the election, and that any electoral system had to be assessed ‘in the light of the political evolution of the country concerned’ so long as the chosen system provides for conditions which will ensure the ‘free expression of the opinion of the people in the choice of the legislature’, Ibid., para. 54.

Ibid., paras 55–9.

Ibid., para. 57.

In fact, for complicated reasons, the district from which the applicants came was sui generis the overall system, putting only French speakers from this district in quite this position, and this and other aspects of the system were in a process of reform.

The General Framework Agreement for Peace in Bosnia and Herzegovina, 4 December 1995 (Dayton Peace Agreement, hereafter DPA), http://www.ohr.int/dpa/default.asp?content_id=372 (accessed 23 July 2012).

Sejdić and Finci v. Bosnia & Herzegovina, ECtHR Application Nos. 27996/06 and 34836/06 (22 December 2009).

Article 1, Protocol 12 provides: (1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Article IV(1), Constitution, Annex IV, DPA, ibid.

Article V, Constitution, Annex IV, DPA, ibid.

In fact a challenge was made before the BCC by a Bosniak from Republika Srpska (RS) to a refusal to register him as a candidate for the Bosnian Presidency as a member of the RS, and this case is now pending before the ECtHR. Decision AP 2678/06, Decision on Admissibility and Merits, Bosnia and Herzegovina C.C., Official Gazette of BiH 86/07, 29 September 2006.

Decision U-5/04, Decision on Admissibility, Bosnia and Herzegovina C.C., Official Gazette of BiH 49/06, 31 March 2006; Decision U-13/05, Decision on Admissibility, Bosnia and Herzegovina C.C., Official Gazette of BiH 24/07, 26 May 2006; Decision AP 2678/06, Decision on Admissibility and Merits, Bosnia and Herzegovina C.C., Official Gazette of BiH 86/07, 29 September 2006; Case U-7/97, Constitutionality of the Peace Agreement, Bosnia and Herzegovina C.C., Official Gazette of BiH 7/98, 22 December 1997.

Sejdić and Finci, para. 21.

Ibid., para. 42.

Ibid., para. 44.

Ibid., para. 46.

Ibid., para. 48.

See e.g. Wheatley, Democracies, Minorities and International Law; and McCrudden and O'Leary, Courts and Consociations, 39, 94–5.

Sejdić and Finci, para. 48.

Ibid., para. 44.

See e.g., statistics at https://www.cia.gov/library/publications/the-world-factbook/geos/bk.html; http://www.fzs.ba/Dem/Popis/NacStanB.htm (accessed 23 July 2012). See further arguments in McCrudden and O'Leary, Courts and Consociations, 113, as to the difficulties of distinguishing between race, ethnicity and status as a ‘national minority’.

See decisions cited in McCrudden and O'Leary, Courts and Consociations, 96–7.

Sejdić and Finci, para. 40.

Ibid., para. 41.

Although it should be noted that this is not entirely out of step with Human Rights Committee approaches which appear at times to very much police the delivery of participation rights in terms of the country's own constitutional and legislative provision, see further below.

O'Leary, ‘Debating Consociational Politics’.

Belfast Agreement, The Agreement: Agreement Reached in the Multi-party Negotiations (10 April 1998), http://cain.ulst.ac.uk/events/peace/docs/agreement.htm (accessed 24 July 2012).

Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, European Commission for Democracy through Law, No. CDL-AD(2005)004, 11 March 2005, http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.asp (accessed 24 July 2012). The Venice Commission opinions in essence folded together elimination of ethnic criteria with a complex re-working of what would constitute the legislature and the Presidency which had a broader political aim of developing and bolstering the central state structures. Their preferred option was to abolish the House of Peoples completely, and reduce the Presidency to essentially a titular Head of State position, shifting executive power to the Council of Ministers. The new ‘down-graded Presidency’ was to be left as a unitary ethnically open position (perhaps with some sort of entity rotation), with the hope that the need for ethnic balance in the Presidency might be acceptable to the relevant groups, if that Presidency was titular with essentially no power.

Opinion on Different Proposals for the Election of the Presidency of Bosnia and Herzegovina, European Commission for Democracy through Law, No. CDL-AD(2006)004, 20 March 2006, http://www.venice.coe.int/docs/2006/CDL-AD(2006)004-e.asp (accessed 24 July 2012).

See e.g., DH v. Czech Republic, ECtHR Application No. 57325/00 (13 November 2007); Orsus v. Croatia, ECtHR Application No. 15766/03 (16 March 2010).

See e.g., Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/BIH/CO/6 (11 April 2006), http://www.unhchr.ch/tbs/doc.nsf/0/72b2390667c6f922c1257180004b369a/$FILE/G0641237.pdf (accessed 24 July 2012).

Arusha Peace and Reconciliation Agreement for Burundi, 28 August 2000, https://peaceaccords.nd.edu/site_media/media/accords/Arusha_Peace_Accords.pdf (accessed 24 July 2012).

Reports of the independent expert on the situation of human rights in Burundi, Akich Okala: A/HRC/9/14 (15 August 2008), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/150/85/PDF/G0815085.pdf?OpenElement (accessed 24 July 2012); and A/62/213, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/453/72/PDF/N0745372.pdf?OpenElement (accessed 24 July 2012).

See Burundi Constitution 2005, Loi No1/010 du 18 Mars 2005 Portant Promulgation de la Constitution de la Republic de Burundi, http://www.assemblee.bi/Constitution-de-la-Republique-du (accessed 25 October 2012). The cabinet positions are expressed in terms of the ethnic group figures being maximums, while the National Assembly percentages are expressed as absolute.

For a good review of the power-sharing arrangements and the context in which they arose see Stef Vandeginste, ‘Power-sharing, Conflict and Transition in Burundi: Twenty Years of Trials and Error’, Africa Spectrum 3 (2009): 63; see also Rene Lemarchand, ‘Consociationalism and Power Sharing in Africa: Rwanda, Burundi, and the Democratic Republic of the Congo’, African Affairs 106, no. 422 (2006): 1.

See Lemarchand, ‘Consociationalism and Power Sharing in Africa’, 16; see also Vandeginste, ‘Power-sharing, Conflict and Transition in Burundi’, 75.

Burundi Constitution, Articles 164 and 180.

Cf. the starting point of the Human Rights Committee in 1994 who noted against a backdrop of escalating violence: ‘[t]he dominance in the army, the police, the gendarmerie, the security forces, the judicial system and, generally, in the most senior civil-service posts of persons belonging to a minority group is a factor constantly and seriously affecting the application of the Covenant and one which continually arouses the fears of the majority of the population’, and recommended immediate reform of the make-up of political, legal and military institutions. Concluding Observations of the Human Rights Committee: Burundi. 03/08/1994, CCPR/C/79/Add.41. (Concluding Observations/Comments), paras 5 and 14.

See Article 257 of the Constitution, stating: ‘pendant une période à determiner par le Sénat, les Corps de défense et de sécurité ne comptent pas plus de 50% de membres appurtenant à un groupe ethnique particulier, compte tenu de la nécessité d'assurer l’équilibre ethnique et de prévenir les actes de genocides et les coups d'Etat'. In other words, the Senate must determine how much longer the 50/50 equilibrium must be kept in place at the level of the army, the police and the intelligence service. In practice, the Senate has so far not given any indication of its intention to put an end to this military and police power-sharing. There is also a potential transitionality to the entire constitutional arrangements: the Constitution can be amended either through a parliamentary process, in which case a fourth-fifths (national assembly) and two-thirds (senate) majority are required, which means that Tutsi have a ‘minorité de blocage’ thanks to their 40% representation. But the Constitution can also be amended through a referendum, in which case the demographic Tutsi minority would be translated into a political minority.

Cf. Ždanoka v. Latvia [GC], 16 March 2006 (Appl. No. 58278/00), with Ādamsons v. Latvia, 24 June 2008 (Appl. No. 3669/03) and Tănase v. Modlova [GC], 27 April 2010 (Appl no. 7/08). See, further, Michael Hamilton, ‘Transition, Political Loyalties and the Order of the State’, in Transitional Jurisprudence and the ECHR: Justice, Politics and Rights, ed. Antoine Buyse and Michael Hamilton (Cambridge, Cambridge University Press, 2011), 151–84.

McCrudden and O'Leary, Courts and Consociations, 134.

See for example, UNSC Res 417 1977; on international legal status of Bantustans and condemnation of them see generally, John Dugard, International Law: A South African Perspective (Kendyn: Juta Press, 1994), 79–81.

Kurić and others v. Slovenia (Application no. 26828/06), ECtHR GC, 26 June 2012.

Issue of the ‘Constituent Peoples’, Case U-5/98, Partial Decision U/98-II, of 18 and 19 February 2000, http://www.ccbh.ba/eng/odluke/index.php?src=2# (accessed 20 July 2012).

See Mátyus v. Slovakia 2000 (where the Human Rights Committee concluded that a substantial difference between the elected representatives per number of inhabitants in different districts would be a violation of article 25 in the absence of any reference by the state party to explain).

Lucas v. The Forty-Fourth General Assembly of the State of Colorado, 377 US 713 (1964), and associated cases discussed in Samuel Issacharoff, International Journal of Constitutional Law 6, no. 2 (2008): 244–6.

See for example Article 12 and 13, ICCPR, dealing with freedom of movement within a territory and residence; see further discussion in Wippman, ‘Constraints on Internal Power-sharing’, 238–41.

See e.g., Article 15, Framework Convention; Wippman, ‘Constraints on Internal Power-sharing’, 238–41.

The rules were complex, but essentially restricted the franchise to people bonded before 1988 who have resided and reached the age of majority in New Caledonia between 1988 and 1998, and their descendents (in the event recording a 72% ‘yes’ vote of a 74% turnout). For a full discussion see Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012), 84–97.

Py v. France App no 66289/01 (ECtHR, 11 January 2005). The court found that as there was no violation of Article 3, Protocol 1, accordingly, it was not necessary to consider Article 14.

Cyprus v. Turkey [GC] (Application no 25781/94), paras 241–7, ECHR 2001-IV. See also Belgian Linguistics discussed further below.

On these arrangements see further David Wippman, ‘International Law and Ethnic Conflict in Cyprus’, Texas International Law Journal 31 (1995): 141.

See e.g., The Comprehensive Settlement of the Cyprus Problem, 31 March 2004 (Annan Plan), http://www.hri.org/docs/annan/Annan_Plan_Text.html (accessed 26 July 2012).

Cyprus v. Turkey, paras 165–77.

However, a later case found that the compensation mechanism established by the TRNC was sufficient to meet requirements for compensation in light of contemporary political arrangements: Demopoulos and Others v. Turkey [Admissibility, GC], 1 March 2010 (Appl. Nos. 46113/99).

See e.g., Section V, Guiding Principles on Internally Displaced Persons, UN Doc. E/CN./4/1998/53/Add.2 of 17 April 1998, http://www.idpguidingprinciples.org/ (accessed 25 October 2012).

Annex VII, DPA.

See e.g., UN Commission on Human Rights, Guiding Principles on Internal Displacement (1998), UN Doc. E/CN.4/1998/53/Add.2 (1998); P. Sérgio Pinheiro, Final Report of the Special Rapporteur, Principles on Housing and Property Restitution for Refugees and Displaced Persons, Annex: Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc. E/CN.4/Sub.2/2005/17 (2005).

Horowitz, Ethnic Groups in Conflict, 613–28.

The relevant rights include: a right to ‘autonomy and self-government in matters relating to their internal affairs’ (Article 4); a right not to be forcibly removed from land, or re-located without free and prior informed consent (Article 10); a ‘right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’, and a right to use, develop and control that land, and for these lands, territories and resources to be given ‘legal recognition and protection’ (Article 26). As Kingsbury has noted, indigenous persons rights straddle self-determination, cultural and property rights, see Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law', New York University Journal of International Law and Politics 34, no. 1 (2002): 189.

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, African Commission on Human and Peoples' Rights (4 February 2010), http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf (accessed 24 July 2012). See further, Jeremie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples' Rights,' International & Comparative Law Quarterly 60 (2011): 37.

Minority Rights Group v. Kenya, para. 149.

The Commission recommended, among other things, that Kenya recognise Endorois rights to ownership to the land they claimed, pay compensation for loss suffered, and ‘[e]ngage in dialogue with the Complainants for the effective implementation of these recommendations’, ibid., Recommendations.

Ibid., paras 212–14.

See e.g., Concluding Observations of the Human Rights Committee, Israel, Human Rights Committee, Ninety-ninth session, Geneva, 12–30 July 2010, see further discussion at http://www.btselem.org/gaza_strip/israels_obligations (accessed 21 July 2012).

Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII; Ivanţoc and Others v. Moldova and Russia, no. 23687/05, 15 November 2011; and Catan and Others v. Moldova and Russia [GC] Appl. nos 43770/04 and 18454/06, 12 October 2012.

Case ‘Relating to Certain Aspects of the Laws on the Use of Language in Education in Belgium’ v. Belgium (Merits), Appl. nos 1474/62, 169/62, 1994/63, 2126/64, 23 July 1968.

Ibid., paras 7 and 13. The court also found no violation in restrictions on parents in certain districts who could have accessed French-language education, from being enabled to access it.

Ibid.

Cyprus v. Turkey 2001. The court relied in part on the fact that the primary school education was available in Greek, and that restrictions in movement between North and South meant that it was not possible to access Greek-language education in the South. See further, European Court of Human Rights, Research Division, ‘Cultural Rights in the Case-law of the European Court of Human Rights’ (Strasbourg: Council of Europe/European Court of Human Rights, January 2011), http://www.echr.coe.int/NR/rdonlyres/F8123ACC-5A5A-4802-86BE-8CDA93FE58DF/0/RAPPORT_RECHERCHE_Droits_culturels_EN.pdf (accessed 21 July 2012).

Peace Agreement between the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé Agreement), 7 July 1999, http://www.usip.org/files/file/resources/collections/peace_agreements/sierra_leone_07071999.pdf (accessed 24 July 2012), Part Two.

Article IX Lomé Agreement.

For overview of jurisprudence see, Diane Orentlichter, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, Yale Law Journal 100 (1991): 2537.

The UN envoy was instructed to sign the agreement with ‘the explicit proviso that the United Nations holds the amnesty and pardon in Article IX of the agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of humanitarian law.Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, para. 7, UN SCOR, UN Doc. S/1999/836 (1999). However, after renewed violence the UN Security Council established a Special Criminal Court of Sierra Leone, which was to refuse to accept that the amnesty constituted a bar to prosecution by the tribunal. See Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E).

United Nations, ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, Report of the Secretary-General, 23 August 2004, New York: United Nations, UN SocS/2004/616, para. 65.

Levitt, Illegal Peace in Africa; and Levitt, ‘Illegal Peace?’.

The most recent initiative to provide for a crime of unconstitutional regime change appears to be in part a response to the African emphasis of International Criminal Court indictments.

See for example, El Salvador Peace Agreement 1992, http://www.usip.org/publications/peace-agreements-el-salvador (accessed 24 July 2012). One suspects that the peace settlements of the early 1990s would not have been seen as ‘unconstitutional democratic rupture’ because they either replaced dictatorships, and/or claimed in the texts of peace agreements to be processes of democratic renewal and constitutional revision. The focus of human rights law with respect to agreement implementation has remained on military power-sharing and questions of impunity as reflecting both the nature of conflict and peace settlement in the region.

See further Levitt, Illegal Peace in Africa and Illegal Peace?

For a detailed discussion see Vandeginste, ‘The African Union, Constitutionalism and Power-sharing’.

Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication 102/93, African Human Rights Law Reports (2000): 191, 198, paras 50–3, http://www1.umn.edu/humanrts/africa/comcases/102-93.html (accessed 24 July 2012); Sir Dawada K. Jawara v. The Gambia Communications 147/95 and 149/95 African Human Rights Law Reports (2000): 107, 118, para. 73. For a fuller discussion of the developmental backdrop to the Lomé Declaration see, Chidi Anselm Odinkalu, ‘Concerning Kenya: The Current AU Position on Unconstitutional Changes in Government’, Open Society Institute, Africa Governance Monitoring and Advocacy Project, Afrimap, January 2008, http://www.afrimap.org/english/images/paper/AU&UnconstitutionalChangesinGovt_Odinkalu_Jan08.pdf (accessed 24 July 2012). See also African Commission on Human Rights, 213: Resolution on Unconstitutional Change of Government, The African Commission on Human and Peoples' Rights (African Commission), at its 51st Ordinary Session held from 18 April to 2 May 2012 in Banjul, The Gambia, http://www.achpr.org/sessions/51st/resolutions/213/ (accessed 25 October 2012).

See, Issaka K. Souaré, ‘The African Union and the Challenge of Unconstitutional Changes of Government in Africa’ (Paper 197, Institute for Security Studies, August 2009), http://www.issafrica.org/uploads/P197.PDF (accessed 24 July 2012); Konstnantinos D. Magliveras, ‘The Sanctioning System of the African Union: Part Success, Part Failure?’ (Paper presented at an Expert Roundtable on ‘The African Union: The First Ten years’, organised by Institute of Security Studies, Addis Ababa, Ethiopia, 22–23 October 2011), http://aegean.academia.edu/KonstantinosMagliveras/Papers/1159844/THE_SANCTIONING_SYSTEM_OF_THE_AFRICAN_UNION_PART_SUCCESS_PART_FAILURE (accessed 24 July 2012); Vandeginste, ‘The African Union, Constitutionalism and Power-sharing’.

African Union, Meeting of Government Experts and Ministers of Justice/Attorneys General on Legal Matters, 7–11 and 14–15 May 2012, Addis Ababa, Ethiopia Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Revisions up to Tuesday 15 May 2012, ‘Bracketed Article 28(E) Exp/Min/IV/Rev.7, http://africlaw.files.wordpress.com/2012/05/au-final-court-protocol-as-adopted-by-the-ministers-17-may.pdf (accessed 25 October 2012) (the draft explains that the article was bracketed by Ministers of Justice/Attorneys General and referred to the Assembly through the Executive Council for consideration).

Vandeginste, ‘The African Union, Constitutionalism and Power-sharing’19. See also Kenya ‘Acting together for Kenya’ which included a draft ‘National Accord and Reconciliation Act’ which was later adopted in parliament. As Vandeginste notes, this Act was given a quasi-constitutional status, coupled with a form of future conversion to a (retroactive) ‘transitional constitution’ arrangement by providing that it would cease to apply upon the dissolution of the parliament, if the coalition government was dissolved or a new constitution enacted.

UNSC Resolution 1325, para. 8.

See cases cited in note 14 above.

See Kymlicka, ‘The Internationalization of Minority Rights’, 1.

See e.g., Olivier de Schutter, International Human Rights Law (Cambridge: Cambridge University Press, 2010), 31–47.

See Chris McCrudden, ‘Consociationalism, Equality, Minorities in the Northern Ireland Bill of Rights Debate’.

William Schabas, ‘Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Criminal Court for Sierra Leone’, University of California Davis Journal of International Law and Policy 11 (2004): 145.

See earlier discussion.

See Kymlicka, Multicultural Odysseys.

See Wheatley, ‘The Construction of Constitutional Essentials’.

See Iorns Magallanes, ‘Indigenous Rights and Democratic Rights in International Law’.

Cf. Issacharoff, ‘Democracy and Collective Decision-making’.

Cf. also Levits dissent in the chamber decision of Ždanoka v. Latvia [Chamber], 17 June 2004 (Appl. No. 58278/00), paras 17–18 (the dissent largely according with the eventual Grand Chamber decision which reversed the Chamber decision), where he stated that the court ‘should not overstep the limits of its explicit and implicit legitimacy and try to rule instead of the people on the constitutional order which this people creates for itself.’

See Patrick Macklem, ‘Minority Rights in International Law’, International Journal of Constitutional Law 6, nos 3–4 (2008): 531.

This happens conceptually, but the structure of the case can also mean that it happens logistically, see e.g. McCrudden and O'Leary, Consociations and Courts, 96–7, discussing legal representation and why affirmative action type arguments in defence of Bosnia's consociational arrangements were not made.

See agreements cited in n. 3.

This of course may also be true of liberal criticisms of consociationalism.

This happened to some extent in the coup cases discussed above.

For an illustration of the complexities and wider international legal constitutional implications, see Roth's discussion of international condemnation and demands for reinstatement following the ouster of Honduran President Manuel Zelaya, an ouster that had the ‘overwhelming support of the legislature and the unanimous support of the Honduran Supreme Court, Brad Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order (Oxford: Oxford University Press, 2011), 213–17.

The Indian Constitutional Court, for example, struck down an unconstitutional constitutional amendment, when the purpose of that amendment was understood to portend destruction of the democratic basis of the state, see L.C. Golak Nath and Others v. State of Punjab AIR 1967 SC 1643. See further, Gary Jeffrey Jacobson, ‘An Unconstitutional Constitution? A Comparative Perspective’, International Journal of Constitutional Law 4, no. 3 (2006): 460.

Zoran Oklopcic, ‘Constitutional (Re)vision: Sovereign Peoples, New Constituent Powers, and the Formation of Constitutional Orders in the Balkans’, Constellations 19, no. 1 (2012): 81.

Bosnia v. Sejdić and Finci, para. 6.

See Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010), arguing that modern constitutionalism and the relationship between constituent power and constitutional arrangements is defined by its use of statecraft.

See Martin Loughlin and Neil Walker, eds. The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007); cf. Issacharoff, ‘Democracy and Collective Decision Making’, 242–4 (arguing that courts in these areas are really deciding ‘first order’ political decisions of how the polity is created) and Clause Offe, ‘“Homogeneity” and Constitutional Democracy: Coping with Identity Conflicts Through Group Rights’, The Journal of Political Philosophy 6, no. 2(1998): 113 (arguing that constitutional law cannot deal with ‘first order’ questions of the legitimate basis of the polity).

Cf. Roth, Sovereign Equality and Moral Disagreement. See also McCrudden and O'Leary, Court and Consociations, Conclusions and Policy Implications, 147–9.